Monday, February 15, 2016

Are Happy Endings a Sign of Constitutional Insincerity?

by Michael Dorf
On Wednesday of last week, Ilya Shapiro (of the Cato Institute) and I participated in a wide-ranging discussion of constitutional (and some other) issues raised by the presidential election campaign, moderated by Jeffrey Rosen (and available on the National Constitution Center website as well as via iTunes). As in the past when we have been paired together, Mr. Shapiro and I agreed on some matters, disagreed on others, and, at least as far as I'm concerned, the three of us had a very interesting conversation. The podcast runs about an hour. Thus, readers who are thinking about listening to it might wish to download it to their mobile devices so that they can multitask while doing so.

Because the discussion preceded Justice Scalia's death, the discussion did not focus on appointments to the Supreme Court. Instead, we mostly considered issues raised by the presidential candidates. We talked about: populism (Trump/Sanders/historical precedents); the constitutionality of Trump's (despicable) proposal to ban Muslims from entering the United States; whether Ted Cruz is a "natural born citizen" who is eligible for the presidency; whether President Obama's executive actions on immigration and gun control violate the Take Care Clause or are otherwise unlawful; and more. I'm not going to rehash the discussion here. Instead, I want to raise a question about a point that Professor Rosen made, with which Mr. Shapiro agreed and I seemed to agree tacitly. The point is that it is a sign of intellectual honesty when one advocates a constitutional result contrary to one's own policy preferences. This view is widely shared but perhaps inadequately justified.

We can articulate different levels at which policy views might diverge from constitutional views. Just about everyone agrees that partisan political views have no proper place in constitutional (or any other kind of) adjudication. That is why the accusations after the Supreme Court's 2000 decision in Bush v. Gore that Republican-appointed justices voted as they did because they preferred that Bush be president than that Gore be--and the counter-accusations that Democratic-appointed justices voted as they did because they preferred Gore--were understood by everyone to be accusations of impropriety of the highest order. One's constitutional views are not supposed to bend because of the identity of the litigants.

One level down (or up, or to the side, depending on how we're measuring these things), we find divergence between policy views on a particular issue and the application of constitutional principle. Here too, if one is faithfully applying the constitutional principle, then it oughtn't to matter whether in the particular case it leads to a result one dislikes. Justice Kennedy's concurrence in the flag-burning case, Texas v. Johnson, is a good example of this sort of divergence, as are free speech/free press cases more generally. Thus, when Professor Colb and I recently raised concerns about the potential chilling effect on free speech of the prosecution of the pro-life activists who conducted an undercover "sting" of Planned Parenthood, we were not at all bothered by the fact that those activists aimed to make a point with which we disagree.

It's easy to pat yourself on the back for applying principles even when they lead to particular results with which you disagree, but perhaps judges and scholars give ourselves too much credit for this sort of thing--at least where we support the broader principle. For example, during our discussion, Mr. Shapiro noted that he believes that President Obama's assertion of executive authority on immigration is unconstitutional even though he favors the substantive policy. That is a divergence, to be sure, but it's really not hard to explain. What Mr. Shapiro is really saying is that he thinks that, in the long run, separation of powers (as he understands it) is more important than immigration reform. Justice Kennedy was saying something similar about freedom of speech in Texas v. Johnson, as were Prof. Colb and I in our Planned Parenthood op-ed. In these examples, none of us is saying "I think the best result, all things considered is X, but the Constitution as best understood says Y." We are instead saying something more like this: "All things considered, over the long run, we will do better by adhering to principle Y, even though it leads to a result I happen not to like in this particular case." These are not, ultimately, examples of putting the Constitution over our own policy views; they are examples of us making all-things-considered long-term judgments.

What would be an example of true bullet biting? Consider our exchange over natural-born citizenship (NBC). Mr. Shapiro thinks that Ted "Cruz’s eligibility isn’t a hard constitutional question": he's eligible. Neal Katyal and Paul Clement more or less agree. Michael Ramsey thinks that it's at least a somewhat difficult question but reaches the same conclusion on originalist grounds. But from the other direction, Eric Posner thinks that the best reading of the NBC Clause precludes Cruz's eligibility. So does Einer Elhauge. And Mary Brigid McManamon. I doubt that any of this disagreement turns on the various scholars' views about the desirability of a Cruz presidency, so we don't have the first kind of illegitimate influence of political views on constitutional interpretation.

But maybe the Cruz-is-eligible crowd is engaged in the second kind of all-things-considered reasoning. I'll use myself as an example. I think that the NBC Clause is stupid and offensive. However, I recognize that it is still part of the Constitution. Thus, even though I think an ideal Constitution would permit naturalized citizens to become president, I recognize that Arnold Schwarzenegger and Madeleine Albright are ineligible. Presumably, all of the other scholars who think that Cruz is eligible also recognize that some people are ineligible. Here we have an example of true bullet biting. We all think that, all things considered, people like Schwarzenegger and Albright should be eligible for the presidency, but that the Constitution forbids this.

Yet notice that I only get to bullet biting of this sort when we come to an issue as to which the Constitution speaks very clearly. If one takes seriously the point that Prof. Rosen was making--that it is a virtue for one's policy views to diverge from one's constitutional views--then one would think that it ought to have some operation even in some cases where the Constitution is unclear. In other words, anyone can follow the Constitution (even if it's stupid or offensive) when it leaves no room for reasonable disagreement, but a really virtuous constitutionalist should at least from time to time construe the Constitution to mean something inconsistent with her policy views even when the text and other relevant materials leave room to construe it as consistent with her policy views. Right?

Well, no. Rather than make the argument myself, however, I think I'll close by challenging this claim by quoting the late great Ronald Dworkin, who wrote the following (at p. 36 of his 1996 book Freedom's Law) in defense of what he called "the moral reading," which is roughly synonymous with what is usually meant by the living Constitution:

It is said that the results I claim for the moral reading, in particular constitutional cases, magically coincide with those I favor politically myself. As one commentator has put it, my arguments always seem to have happy endings. Or, at any rate, liberal endings . . . . This is suspicious, it is said, because I insist that law is different from morality, and that legal integrity often prevents a lawyer from finding in the law what he wishes were there. Why, then, is the American Constitution, as I understand it, so uniform a triumph of contemporary liberal thought?

After fighting the factual basis for the accusation by giving some examples of policies he favored that the Constitution either forbade or didn't require, Dworkin went on to challenge the premise

that it is embarrassing for the moral reading when those who accept it find happy endings to their constitutional journeys. Of course my constitutional opinions are influenced by my own convictions of political morality. So are the opinions of lawyers who are more conservative and more radical than I am. . . . Constitutional politics has been confused and corrupted by a pretense that judges (if only the were not so hungry for power) could use politically neutral strategies of constitutional interpretation. Judges who join in that pretense try to hide the inevitable influence of their own convictions even from themselves, and the result is a costly mendacity.

So, although Professor Rosen's point is a commonplace (and one I have accepted in the past), unpacking it suggests that there is less there than meets the eye.

2 comments:

There was a plan supported by Sen. Hatch to add a representative to Utah while also giving D.C. a voting representative in the House. I think that D.C. (and Puerto Rico for that matter) should have representation that reflects their population there. But, as a constitutional matter, that seems wrong -- only states should have voting delegates in each body, though others can have non-voting representatives.

The Constitution does provide a lot of play in the joints especially with certain provisions that seem to clash (free press v. fair trials, e.g.). There is a way to argue the D.C. policy was appropriate; it isn't quite the two senator rule which I find bad policy too (but some argued even there that Reynolds v. Sims etc. would be used against the U.S. Senate -- why not really? amendments came after Art. I). But, I think there is a reasonable limit of argument that is passed there.

Various scenarios can be imagined there too including some vicious criminal found innocent by a biased jury with even the federal second bite of the apple only an imperfect solution (there are some crimes that simply are local and heck let's say the second trial had to get jurors from the same biased jury pool).

"We are instead saying something more like this: "All things considered, over the long run, we will do better by adhering to principle Y, even though it leads to a result I happen not to like in this particular case."

What a psychologist would say is that the distinctions reflect a person's value hierarchy. When psychologists talk about value all they mean is the mental weight that one preference gets vis a vie another preference. [Technically, there is a distinction between "import" and "value" but in everyday speech these are often used as synonyms for each other.] Declarations against interest are simply an expression of the construction of such value hierarchies, in a negative fashion. So in Dorf's example he pushes abortion down the ordered list and pulls freedom of speech up the ordered list.

It's worth nothing in this context that "over the long run" is in and of itself a psychological value insofar as it is distinctive compared to a person who makes decisions based upon short run calculations. So in this sense his statement against interest could also be seen as a form of deferred gratification.

The reason this process of value formation is worth reflecting on is twofold. First, psychological research shows that while our value are formed in childhood our value hierarchies shift through time--what is on the menu tends to stay there but where the value is listed on the menu shifts. The second reason is that differences in value hierarchies often explain in-group conflict. For example, a group of people who self-identify as "pro-choice" might order that value differently compared to other values leading some people to question, "How can Dorf be pro-choice when he sides with those anti-abortion folks?!"